Roy v. National Grange Mut. Ins. Co.
| Decision Date | 23 December 1981 |
| Citation | 446 N.Y.S.2d 423,85 A.D.2d 832 |
| Parties | Andrew ROY, Respondent, v. NATIONAL GRANGE MUTUAL INSURANCE COMPANY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Simon, Trieble & Werner, Ballston Spa (Mark M. Rider, Ballston Spa, of counsel), for appellant.
James W. Fitzsimmons, Saratoga Springs, for respondent.
Before MAHONEY, P. J., and SWEENEY, KANE, CASEY and WEISS, JJ.
Appeal (1) from that part of a judgment of the Supreme Court at Special Term, entered July 11, 1980 in Saratoga County, which declared that defendant had no legal right to demand production of blood alcohol test results from plaintiff, and (2) from an order of said court, entered December 2, 1980 in Saratoga County, which denied defendant's motion to reargue.
Plaintiff, while operating a motor vehicle insured by defendant, was involved in a one-car accident and sustained personal injuries. He made a claim to defendant for first party benefits. Defendant twice demanded authorization to obtain the results of any blood alcohol tests administered to plaintiff. When plaintiff failed to respond, defendant notified plaintiff of its decision to disclaim.
Plaintiff then commenced the instant action seeking a declaratory judgment. Both parties moved for summary judgment. Special Term found in favor of plaintiff and declared that defendant had no legal right to make the demands that it did upon plaintiff. Defendant sought reargument which was denied. This appeal ensued.
While not raised in the briefs, plaintiff, at oral argument on the appeal, moved to dismiss the appeal as untimely. The record demonstrates that the judgment appealed from was entered July 11, 1980 and the notice of entry and judgment served on defendant on July 14, 1980. The notice of appeal is dated December 9, 1980. Clearly, this was untimely. Defendant, however, maintains that the appeal was timely, asserting that the second motion was one for renewal rather than for reargument and was made on May 20, 1980, nearly two months before the judgment was entered. The second motion was denied on November 25, 1980 and the order thereon entered December 2, 1980. The issue of the timeliness of the appeal narrows to whether the second motion was one for renewal or one for reargument. Clearly, the denial of a motion to reargue is not appealable (Matter of Hooker v. Town Bd. of Town of Guilderland, 60 A.D.2d 684, 399 N.Y.S.2d 935). If the second motion was one for renewal rather than reargument, the appeal is timely and such a denial is appealable (Urban v. Maloney, 40 A.D.2d 531, 334 N.Y.S.2d 122).
The record reveals that the original motion was one for summary judgment and defendant cross-moved for the same relief. The basic issue was whether defendant was entitled to the results of the blood test. Plaintiff contended in his papers that defendant was not entitled to the results of the blood test since plaintiff was...
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